IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 114-1543-01 IN THE 114TH JUDICIAL DISTRICT COURT
OF SMITH COUNTY
ORDER
The clerk of the trial court transmitted this application for a writ of habeas corpus to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Ex parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967). Applicant was convicted of possession of less than one gram of cocaine. Punishment was assessed at confinement for twenty years, consecutive to another sentence, after Applicant was found to be a habitual offender. The conviction was affirmed on appeal. Taylor v. State, No. 12-02-054-CR (Tex. App. - Tyler, delivered December 23, 2003, no pet.).
Applicant contends that his conviction should be overturned on the grounds of ineffective assistance of counsel. The trial court found that Applicant's trial counsel failed to object to admission of an extraneous escape offense and failed to proffer evidence that Applicant had previously been acquitted of that escape, and recommended that relief be granted because counsel therefore provided ineffective assistance. However, evidence of an otherwise admissible extraneous offense is not rendered inadmissible merely because the defendant has been acquitted of that offense in a previous criminal trial. Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Similarly, evidence of that acquittal would not necessarily establish that Applicant did not commit the acts shown by testimony at Applicant's trial, see Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and the record before this Court does not demonstrate that counsel could have shown that evidence of the acquittal would have been admissible for that purpose. The facts found by the trial court do not support the conclusion that trial counsel rendered ineffective assistance of counsel, and relief is therefore denied.
IT IS SO ORDERED on this the 12th day of April, 2006.
DO NOT PUBLISH